BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 333 (Lieu)
As Introduced February 19, 2013
Hearing date: April 9, 2013
Penal Code
MK:mc
CRIMES: EMERGENCIES:
FALSE REPORTING
HISTORY
Source: Los Angeles County Sheriff's Department
Prior Legislation: AB 2225 (Mountjoy) - Chapter 227, Stats. 2006
SB 1707 (Aanestad) - Chapter 51, Stats. 2004
SB 2057 (O'Connell) - Chapter 521, Stats. 2002
Support: Riverside Sheriffs Association; Association for Los
Angeles Deputy Sheriffs; Los Angeles Police Protective
League; California Police Chiefs Association;
California State Sheriffs' Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUES
SHOULD THE MINIMUM JAIL TIME FOR MISDEMEANOR FILING OF A FALSE
EMERGENCY REPORT BE 120 DAYS?
SHOULD A PERSON GRANTED PROBATION FOR FILING A FALSE EMERGENCY
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REPORT BE REQUIRED TO SERVE A MINIMUM OF 120 DAYS IN JAIL?
(CONTINUED)
SHOULD THE REQUIREMENT THAT A PERSON KNEW OR SHOULD HAVE KNOWN THAT
A FALSE REPORT COULD LEAD TO DEATH OR INJURY BE REMOVED IN ORDER FOR
A PERSON TO BE CHARGED WITH A FELONY IF AN INJURY OCCURS?
SHOULD AN INDIVIDUAL CONVICTED OF MAKING A FALSE EMERGENCY REPORT BE
LIABLE TO THE PUBLIC AGENCY FOR THE REASONABLE COSTS OF THE
EMERGENCY RESPONSE BY THE PUBLIC AGENCY?
PURPOSE
The purpose of this bill is to 1) set a minimum jail time for
misdemeanor filing of a false emergency report, whether or not a
person is granted probation; 2) remove the requirement that a
person knew or should have known that the false emergency report
could result in death or injury in order for the person to be
charged with a felony; and 3) make a person convicted of filing
a false emergency report liable for the cost of the response.
Existing law provides that any individual who reports, or causes
any report to be made, to any city, county, city and county, or
state department, district, agency, division, commission or
board, that an "emergency exists, knowing that the report is
false, is guilty of a misdemeanor punishable by imprisonment in
a county jail for period not exceeding one year and/or by a fine
of not exceeding $1,000 (plus penalty assessments). (Penal Code
§ 148.3(a).)
This bill would provide that the sentence for the above
misdemeanor would be a minimum of 120 days not exceeding one
year.
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This bill provides that any individual convicted of the above
who is granted probation shall be confined in the county jail
for at least 120 days as a condition of probation. That minimum
sentence shall be imposed unless the court finds that it is in
the interests of justice not to impose that sentence, and states
on the record the reasons why justice would be served by not
imposing the minimum jail sentence.
Existing law provides that any individual who reports, or causes
any report to be made to any city, county, city and county, or
state department, district, agency, division, commission or
board that any "emergency" exists and who knows the report is
false, and who knows or should know that response to the report
is likely to cause death or great bodily injury, and great
bodily injury or death is sustained by any person as a result of
the false report is guilty of a felony and upon conviction shall
be punishable by imprisonment in the county jail for 16 months,
2 or 3 years and/or a fine of not more than $10,000 (plus
penalty assessments). (Penal Code § 148.3 (b).)
This bill removes the requirement that the person knew or should
have known that the false report was likely to cause death or
great bodily injury in order for the person to be charged with a
felony violation.
Existing law provides that "emergency" means any condition that
results in, or could result in, the response of a public
official in an authorized emergency vehicle, aircraft, or
vessel, any condition that jeopardizes or could jeopardize
public safety and results in, or could result in, the evacuation
of any area, building, structure, vehicle, or any other place
that any individual may enter, or any situation that results in
or could result in activation of the Emergency Alert System.
(Penal Code § 148.3 (c).)
This bill provides that any individual convicted of violating
this section, resulting in an emergency response, is liable to a
public agency for the reasonable costs of the emergency response
by the public agency.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard
and difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
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at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
"Swatting" recently has grown to near-epidemic
proportions in California-particularly throughout Los
Angeles County. Swatting is when an individual makes
prank calls and/or false reports of violent crimes to
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law enforcement in an attempt to solicit a tactical
police response that often includes a SWAT team (thus
the term "swatting").
These hoax 911 calls have become increasingly common in
the past few months as they involve entertainers,
celebrities and other public officials. Swatting
victims include Simon Cowell, Ashton Kutcher, Tom
Cruise, the Kardashians, Chris Brown, Charlie Sheen,
Miley Cyrus, Justin Bieber, Clint Eastwood and others.
But celebrities are not the only ones who have been
targeted; the U.S. Coast Guard, many private
individuals, and local law enforcement officials have
also fallen victim to the swatting hoax.
Swatting incidents have already resulted in injuries
for several responding officers, and many law
enforcement officials fear that it is only a matter of
time before events take a deadly turn. Los Angeles
Police Chief Charlie Beck acknowledged in the Los
Angeles Times that swatting has stretched the LAPD's
emergency response capacity while also endangering
victims by placing them in potential confrontation with
police.
Swatting not only is an inconvenience to the victims
but also a costly waste of precious law enforcement
resources. Law enforcement takes every emergency
reported and uses its resources to maximize public
safety. But at a time a false report is given, law
enforcement is unaware that it is a hoax-until they get
to the scene of the alleged crime.
Current law allows for either misdemeanor or felony
charges, depending on the judge's discretion, for those
convicted of making false emergency reports. But the
law is so burdensome that no one ever has been charged
with a felony.
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Given recent tragedies involving gun violence
nationwide, pranks that divert public safety resources
are far from harmless, and, in fact, are the last thing
needed; they must be deterred. This bill seeks to
create a greater deterrent and provide law enforcement
with the ability to help recoup expenses within the
criminal case, which reportedly can run as high as
$10,000 per incident.
2. Mandatory Jail Time With or Without Probation
Existing law makes it a misdemeanor for making a false report
that an "emergency" exists knowing that the report is false. If
convicted a person faces up to one year in county jail and a
fine not exceeding $1,000. This bill would provide that a
person must be sentenced to a minimum of 120 days in jail even
if probation is granted. If probation is granted the judge may
not impose the minimum sentence if the judge states why on the
record in the interest of justice it shall not be imposed.
As noted in the author's statement, "swatting" - making a false
call claiming an emergency to mobilize multiple law enforcement
units-has become a problem in some jurisdictions. The news
articles submitted by the author suggest that the caller in at
least some of the recent incidents in Los Angeles was a 12 year
old boy.
A person may already be sentenced to up to one year in jail so
it is unclear what deterrent effect a mandatory 120-day sentence
would have on these callers. The district attorney can ask for
a longer sentence when appropriate, and the judge can sentence
when appropriate. Many jails in the state are overcrowded.
Would this 120-day sentence impact on how a sheriff could
control his or her jail population? Would it require this
person to be held for their entire minimum sentence while the
sheriff may have to release, for example, a sex offender who has
committed a parole violation, or some other person who has
committed a serious or violent offense early?
It is also unclear what impact this will have on the court case
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load. If a person must serve 120 days whether or not they are
given probation, what incentive does a person have to not bring
a case to trial? Why would a person agree to probation
conditions when he or she could possibly serve the same amount
of time in jail and be released? In this type of case could the
use of conditions of probation be a more appropriate sentence
than jail time? It appears at least some of the calls are made
using computers to make it appear as if the calls are coming
from elsewhere. A probation condition limiting access to
computers, the internet, etc., might be a deterrent to a person
who uses technology in this way.
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3. Expansion of Existing Jail Felony by Making it a Strict
Liability Offense
In addition to the misdemeanor described above, existing law
makes it a felony to make a false emergency report when the
person knows or should have known that the response to the
report is likely to cause death or great bodily injury, and
great bodily injury or death is sustained as a result of the
false report. The penalty for this felony is 16 months, two or
three years in jail.
This bill removes the requirement that a person knew or should
have known that the false report was likely to cause death or
great bodily injury. This would make it a strict liability
felony. "Should have known" is a reasonable person standard. A
district attorney would have to convince a jury that a
reasonable person would know that claiming an emergency which
would have a large number of armed law enforcement officers
descending on a place of residence or causing an area to be
searched could result in someone being injured or killed.
Common sense says a "reasonable" adult with no mental
disabilities should know this; on the other hand, a "reasonable"
12-year old might not.
Removing the "knew or should have known" requirement from this
section removes an element that the district attorney has to
prove and arguably will make these cases easier to prosecute
these offenses and not take into account the mental capacity of
the person charged, thus likely increasing the number of
prosecutions for this jail felony.
The sponsor argues that "these false emergencies can be very
dangerous and create hazardous situations for all involved."
In opposition, California Attorneys for Criminal Justice (CACJ)
notes:
This attempt to create a kind of "strict liability"
which exists in tort litigation is antithetical to our
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notions of fairness and most settled principles of
justice. An attempt to render someone criminally
liable (or in this case, to elevate misdemeanor conduct
to a felony) without any requirement of intent to cause
a specified result or knowledge of the possibility that
result may occur does not exist anywhere else in the
Penal Code.
4. Liability for Costs
This bill provides that a person convicted of making a false
emergency report that results in an emergency response is liable
to the public agency for the reasonable costs of the emergency
response by the public agency. CACJ notes that Penal Code
Section 653x already allows reasonable costs incurred when a 911
call is made with the intent to harass, and could be
alternatively charged in one of these cases. Existing law also
allows which for the cost of emergency response in cases where a
person knowingly enters into an area closed to the public or
drives on a street closed for flooding; however, that amount of
liability is limited to $12,000. (Government Code §§ 53155;
53159.) Restitution is also given to victims in a criminal
case, although it may not be clear that the government agency
that responds is a "victim" and whether the court can order
reimbursement currently in these cases. If not, then any of
these costs would be in addition to any reimbursement ordered to
a victim if one is identified.
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